Rehan Khan
On 17th March 2025, the Allahabad High Court in Akash and Ors. v. State of Uttar Pradesh and Ors. observed that grabbing minor’s breasts and breaking string of pyjama does not come under the pretext of rape.
The High Court modified a Trial Court’s summoning order, holding that the alleged acts of grabbing an 11-year-old child’s breasts, breaking the string of her pyjama, and attempting to drag her beneath a culvert do not fulfill the legal criteria for the offence of rape or even an attempt to rape.
Consequently, the Court altered the charges against the two accused, i.e.,—Pawan and Akash—who were earlier summoned to face trial under Section 376 of the Indian Penal Code, 1860 and Section 18 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. Instead, the Court directed that the accused be tried under lesser but still grave charges, namely Section 354-B IPC (Assault or Use of Criminal Force to Disrobe a Woman) and Sections 9/10 of the POCSO Act (Aggravated Sexual Assault).
The decision was rendered by Justice Ram Manohar Narayan Mishra, who underscored the absence of material indicating a determined intent to commit rape on the part of the accused. Observing the allegations in the complaint, the Court noted that the actions attributed to the accused involved inappropriate touching and an attempt to remove the victim’s lower garments, but nothing further to suggest a concrete attempt at rape.
“…the allegation against accused Pawan and Akash is that they grabbed the breasts of the victim and Akash tried to bring down lower garment of the victim and for that purpose they had broken string of her lower garments and tried to drag her beneath the culvert, but due to intervention of witnesses they left the victim and fled away from the place of incident. This fact is not sufficient to draw an inference that the accused persons had determined to commit rape on victim as apart from these facts no other act is attributed to them to further their alleged desire to commit rape on the victim,” the Court observed.
As per the prosecution’s case, Pawan and Akash allegedly grabbed the breasts of the minor girl. One of them is also said to have broken the string of her pyjama in an attempt to drag her to a secluded spot beneath a culvert. However, intervention by passers-by forced the accused to abandon their actions and flee, leaving the child behind.
Based on these allegations, the Trial Court found a prima facie case of attempted rape and attempted penetrative sexual assault under the POCSO Act. Accordingly, it issued a summoning order invoking Section 376 IPC and Section 18 of the POCSO Act.
Challenging the summoning order before the High Court, the accused contended that even if the entire version of the complainant is accepted at face value, it does not establish the offence of rape or even an attempt to commit rape. They argued that, at most, the case attracted provisions such as Section 354 IPC (assault or criminal force to outrage modesty) and Section 354-B IPC, along with relevant sections of the POCSO Act.
On the other hand, the counsel for the complainant argued that at the stage of framing charges, the Trial Court is not required to conduct a meticulous evaluation of evidence, but merely ascertain whether a prima facie case exists to proceed with the trial.
After a detailed consideration of the materials on record, the High Court concluded that there was no substantive evidence indicating that the accused had crossed the stage of preparation and entered into an actual attempt to commit rape.
“…It is also not stated by witnesses that due to this act of the accused the victim got naked or got undressed. There is no allegation that accused tried to commit penetrative sexual assault against the victim,” the Court stated.
Highlighting the distinction between preparation and attempt, Justice Mishra remarked:
“In order to bring out a charge of attempt to rape the prosecution must establish that it had gone beyond the stage of preparation. The difference between preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.”
Finding merit in the accused’s challenge, the High Court modified the Trial Court’s summoning order. It directed the lower court to issue a fresh order summoning the accused under Section 354-B IPC and Sections 9/10 of the POCSO Act rather than under Section 376 IPC and Section 18 of the POCSO Act.
Case Name: Akash & Ors. v. State of Uttar Pradesh & Ors.
Case Number: Criminal Revision No. – 1449 of 2024
Bench: Justice Ram Manohar Narayan Mishra
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